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The Supreme Court expanded its doctrine on the ineffective assistance of counsel, setting aside the death penalty for a Pennsylvania man because his lawyers failed to search files on his past convictions for mitigating evidence. The Court said in a 5-4 decision that a “lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial.” The ruling in Rompilla v. Beard, written by Justice David Souter, was issued as the high court entered the final days of its current term. The Court issued six opinions, but none involved the most-awaited cases, concerning Ten Commandments displays, the copyright implications of online file-sharing, and eminent domain powers of local governments. The Court will issue opinions on Thursday and again next Monday and could add another opinion day next week. The decision in the Rompilla case follows a series of rulings, including Wiggins v. Smith in 2003, which faulted lawyers for failing to investigate records because of “inattention.” But it seemed to go a step further in requiring lawyers to investigate past case files even when their conscientious efforts led them to think it would be a waste of time. In the Rompilla case, the lawyers had asked the defendant about his childhood, but he said it was “normal,” and showed little interest in helping seek a lesser sentence. “No reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations what they recalled,” wrote Souter. “Nor would a reasonable lawyer compare possible searches for school reports, juvenile records, and evidence of drinking habits to the opportunity to take a look at a file disclosing what the prosecutor knows and plans to read from in his case.” Ronald Rompilla was convicted of the 1988 murder of a tavern owner in Allentown, Pa. At the sentencing phase, his state-appointed lawyers presented only brief mitigating evidence gleaned from five family members. On appeal, new lawyers for Rompilla said that his first lawyers had failed to investigate evidence from prison and court files of Rompilla’s troubled childhood, mental illness, and alcoholism. A district judge found ineffective assistance of counsel, but the U.S. Court of Appeals for the 3rd Circuit reversed, determining that the first lawyers were justified in not investigating past records because their initial inquiries indicated there was little to discover. The Supreme Court said the lawyers’ failure to meet standards of reasonable performance was “obvious” and may have made the difference between a life or death sentence. Souter pointed to American Bar Association standards that say defense lawyers have a duty to “explore all avenues” regardless of the client’s statements or actions. The Court sent Rompilla’s case back to Pennsylvania courts with unusually specific instructions: “Pennsylvania must either retry the case on penalty or stipulate to a life sentence.” State officials could not be reached for comment. The Court said it did not need to rule on a second issue in the case�whether Rompilla’s jurors should have been told that a life sentence in Pennsylvania means no possibility of parole. A footnote, however, indicated that any retrial of Rompilla’s sentence would be “governed by” Supreme Court precedents on the issue. In dissent, Justice Anthony Kennedy said the ruling imposed onerous new “needle in a haystack” duties on defense lawyers. “The Constitution does not mandate that defense attorneys perform busy work,” Kennedy wrote. “The majority’s holding has no place in our Sixth Amendment jurisprudence and, if followed, often will result in less effective counsel by diverting limited defense resources from other important tasks in order to satisfy the Court’s new per se rule.” He was joined by Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. But Maureen Rowley, the chief federal defender in the Eastern District of Pennsylvania, said Monday, “I don’t think it’s a high burden to ask a defense lawyer to open the file that the prosecution is using for aggravating evidence.” Rowley, whose office won the case for Rompilla, said Monday’s ruling “strengthens and clarifies” past ineffective assistance of counsel decisions and underscores the duty of lawyers to at least obtain “the basic paper files” that the prosecution will be using against the client. Tony Mauro can be contacted at [email protected].

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